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2020 DIGILAW 489 (GAU)

Lalchhanchhuaha v. State Of Mizoram

2020-05-14

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2020
JUDGMENT Nelson Sailo, J. - Heard Mr. K. Lalchhanliana, learned Amicus Curiae for the appellant as well as Mrs. Linda L. Fambawl, learned Additional Public Prosecutor for the State respondents. 2. This is an appeal from jail filed by the appellant against the Judgment & Order dated 11.05.2018 passed by the Additional Sessions Judge, Aizawl Judicial District, Aizawl in Criminal Trial No. 204/2017, convicting the appellant under Section 376(2)(f) as well as Section 506 of the Indian Penal Code (IPC). On conviction, the appellant has been sentenced to undergo Rigorous Imprisonment for 12 years and to pay a fine of Rs. 3,000/-, and in default to undergo Rigorous Imprisonment for another 3 months for his conviction under Section 376(2)(f) of the IPC. He was also sentenced to undergo Rigorous Imprisonment for 1 year and to pay a fine of Rs. 3,000/- for his conviction under Section 506 of the IPC. Both the sentences have been directed to run concurrently. 3. The case of the prosecution in brief is that the victim (prosecutrix) lodged an FIR before the Officer-in-charge of Bawngkawn Police Station on 04.10.2016, stating that in the early morning of 04.10.2016 at around 2:00 AM, her cousin brother Sh. Lalchhanchhuaha, S/o Lalfakawma entered her house and put off all the lights. He then felt her body and when she awoke, he strangulated her neck and as a result, she could not breath properly. He then ordered her to take off her pants and said that he desired her for a long time and if she shouted, he would kill her. He stated that he kept a knife nearby. The prosecutrix being very scared could not do anything and the appellant after raping her, left the house. The prosecutrix therefore in her FIR requested that necessary action may be taken against the appellant as per law. 4. On receipt of the FIR, Bawngkawn Police Station Case No. 308/2016 dated 04.10.2016, under Sections 376(2)(f)/506 IPC was registered and investigation conducted. After the investigation was completed, the case I.O. submitted the charge sheet on 07.12.2016. The Additional Sessions Judge-II, Aizawl then on 22.03.2017 framed the charge under Sections 376(2)(f) as well as 506 of the IPC and to which, the appellant pleaded not guilty. Consequently, trial commenced against the accused. During the trial, the prosecution examined as many as 8 (eight) prosecution witnesses, while the appellant did not adduce any defence witness. The Additional Sessions Judge-II, Aizawl then on 22.03.2017 framed the charge under Sections 376(2)(f) as well as 506 of the IPC and to which, the appellant pleaded not guilty. Consequently, trial commenced against the accused. During the trial, the prosecution examined as many as 8 (eight) prosecution witnesses, while the appellant did not adduce any defence witness. Upon the completion of the evidence, the appellant was examined under Section 313 of the Cr.P.C. and pursuant thereto, the parties were heard and the Trial Court passed the impugned judgment and order, as already stated hereinabove. 5. Mr. K. Lalchhanliana, the learned Amicus Curiae submits that on the early morning of 04.10.2016, when the alleged incident occurred, the prosecutrix was not alone as she was sleeping with her daughter aged about 7 years old. Therefore, if the alleged incident occurred, the daughter of the prosecutrix surely would have known and for that reason, she has to be examined so as to sustain the conviction of the appellant. He submits that the sole testimony of the prosecutrix under the given circumstances is not sufficient to convict the appellant. The learned Amicus Curiae further submits that from the examination of the appellant under Section 313 of the Cr.P.C., it is clear that rape was not committed upon the prosecutrix and in fact, it was a consensual sex. Since the prosecutrix was sleeping in her room in her rented house, it can only be presumed that she herself had opened the door for the appellant and without awakening the sleeping child, they had consensual sex. Therefore, the FIR filed by the prosecutrix sometime in the evening is only an afterthought. The learned Amicus Curiae also submits that the FSL report neither discloses anything against the appellant nor implicated him in the alleged crime. He thus submits that under the circumstances, the conviction and sentence against the appellant is not sustainable and the impugned judgment and order is liable to be set aside and the appellant acquitted. 6. Mrs. Linda L. Fambawl, the learned Additional Public Prosecutor, by referring to the appeal filed by the appellant from jail submits that the appellant himself has clearly stated that he has no objection or grievance regarding the judgment passed by the Trial Court. 6. Mrs. Linda L. Fambawl, the learned Additional Public Prosecutor, by referring to the appeal filed by the appellant from jail submits that the appellant himself has clearly stated that he has no objection or grievance regarding the judgment passed by the Trial Court. The appellant has explained that after the incident happened and he having undergone detention for some time, he has reformed himself morally and he has been trying to become a better person. He has stated that he repented his action and accepted the consequences, which followed. However, since he was suffering from HIV infection as well as Hepatitis C, he is in urgent need of necessary treatment and for which, the period of his sentence may be reduced to enable him avail proper medical facility outside the jail. The learned Additional Public Prosecutor submits that the appeal filed by the appellant on such grounds does not merit consideration, inasmuch as, he has committed rape upon his own cousin sister. 7. Mrs. Linda L. Fambawl, the learned Additional Public Prosecutor by further referring to the impugned judgment, more particularly at paragraph No. 28 submits that the Trial Court from the evidence on record came to the conclusion that there was nothing in the evidence, which suggested that the prosecutrix had enmity with the appellant. In fact, she would not come forward risking all her dignity, marriage, reputation etc. especially when no-one knew about the incident initially. The appellant was released only 1 (one) day prior to the date of the incident from jail after serving the jail term for the crimes committed by him i.e., rape and murder. This clearly contributed to the fear on the prosecutrix for her life especially when the appellant had kept a knife nearby, while committing the crime. She therefore submits that the Trial Court did not commit any error in convicting and sentencing the appellant and as such, the impugned judgment and order requires no interference of this Court and it should be upheld. The learned Additional Public Prosecutor in support of her submission that the sole testimony of the prosecutrix is sufficient to convict the appellant relies upon the decision of the Apex Court rendered in Narender Kumar Vs. State (NCT of Delhi), (2012) 7 SCC 171 . 8. The learned Additional Public Prosecutor in support of her submission that the sole testimony of the prosecutrix is sufficient to convict the appellant relies upon the decision of the Apex Court rendered in Narender Kumar Vs. State (NCT of Delhi), (2012) 7 SCC 171 . 8. We have heard the submissions made by the learned counsels for the rival parties and have perused the materials available on record, including the Lower Court Records requisitioned from the Trial Court. 9. Let us now examine the evidence led by the prosecution witnesses. The prosecutrix examined herself as PW-1 and in her examination-in-chief, she stated as follows:- wxyz I know the accused who is present in the Court today. He is my first cousin, he is my maternal uncle Lalfakawma''s son. The accused parents got divorced when he was only 2 years old and his mother Zodinpuii keep the accused and his elder sister Lalrinfeli in our house as she could not look after them. Since then, we look after the accused and his sister. And we live under the same roof at my parent''s house at Ramhlun Vengthar, Aizawl. I and my husband P.C. Malsawma also live with my parents at Ramhlun Vengthar, but we rented a small house nearby for our bedroom as there was no space for our bedroom in my parent''s house. My husband is a Policeman and we had three children. zyxw wxyz On 4.10.2016 at around 2:00 AM while I was asleep with my daughter Priskil Lalduhawmi (8 years) inside our rented bedroom, the accused entered into our bedroom and he touch my breast and woke me up and on that relevant time, my husband is on night duty and I turned towards him and questioned him who are you as it was dark. And he suddenly strangled my neck by saying that he wanted to have sexual intercourse with me for a long time and he threatened me not to shout otherwise he would kill me and he also show me the knife which he kept beside my pillow. After that, he raped me and he left our bedroom. And he suddenly strangled my neck by saying that he wanted to have sexual intercourse with me for a long time and he threatened me not to shout otherwise he would kill me and he also show me the knife which he kept beside my pillow. After that, he raped me and he left our bedroom. On the same morning, I informed about the incident to my aunty Lalronungi and on the same day, I submitted FIR to the OC, Bawngkawn P.S. And on the next day as instructed by the OC, Bawngkawn PS, I went to the Women Cell, Aizawl PS and they forwarded me to the Aizawl Civil Hospital for medical examination. Before the day of the incident, the accused was still in judicial custody. At the time of the incident, I was so frightened of the accused who is my cousin, as he had been convicted for murder and rape case. zyxw wxyz I was informed by my uncle that he was admitted to the Presbyterian Hospital, Durtlang in the month of March, 2017 and also informed me that he was HIC+ve and I also went to the Hospital for HIV+ve test. Ext. P-1 is the FIR submitted by me and Ext. P-1(a) is my signature. Ext. M-1 is the seized article i.e. knife which was used by the accused for threatening me at the time of the incident. zyxw wxyz Ext. M-2 is a piece of cloth, which was cut off from our mattresses." zyxw 10. Upon being cross examined, PW-1 stated that the appellant and his sister were looked after by her and her parents, since he was 2 years old. She also stated that she always bolted the door before going to sleep but however, she does not know how the appellant entered into their bedroom that morning. She also stated that at the time of the incident, she did not shout because the appellant strangulated her neck and she could not shout. 11. Sh. V.L. Hmangaiha, S/o Lalrema (L), R/o Ramhlun Vengthar was examined as PW-2. In his examination-in-chief, he stated that the appellant was the son of his younger brother, Sh. Lalfakawma and therefore his nephew. The statements made by him in his examination-in-chief were more or less similar to that of the PW-1. 11. Sh. V.L. Hmangaiha, S/o Lalrema (L), R/o Ramhlun Vengthar was examined as PW-2. In his examination-in-chief, he stated that the appellant was the son of his younger brother, Sh. Lalfakawma and therefore his nephew. The statements made by him in his examination-in-chief were more or less similar to that of the PW-1. In his cross examination, he stated that the Police Officer concerned seized one knife and one piece of cloth, which was cut off from the complainant''s mattress in his presence. 12. Smt. Lalronungi, D/o Lalrema (L), R/o Ramhlun Vengthar was examined as PW-3 and in her examination-in-chief, she deposed that on 04.01.2016 the prosecutrix informed her that she had been raped by the appellant on the early morning of that day, while she was asleep with her daughter by being threatened with a knife. That on the same day, the prosecutrix submitted an FIR before the Officer-in- charge, Bawngkawn Police Station and on the next day, the police arrived at the place of occurrence and seized one knife, which was used by the appellant for threatening the prosecutrix and also seized a piece of cloth in her presence and she stood as the seizure witness. The police personnel also recorded her statements and she put her signature in the seizure memo. In her cross examination, she reiterated what she has stated in her examination-in-chief. 13. Sh. T. Lalhmachhuana, Judicial Magistrate 1st Class, Aizawl was examined as PW-4 and in his examination-in-chief, he deposed that on 05.10.2016 while he was on duty in the Court, he received a requisition from the police for recording the judicial statement of the prosecutrix in connection with the case. Accordingly, he recorded her statement as per Section 164 of the Cr.P.C. He exhibited the judicial statement given by the prosecutrix, his signature, his signature on the certificate issued by him and the signature of the prosecutrix as Exhibit P-3, P-3(a), P-3(b) and P-3(c) respectively. 14. Sh. Lalchhanzova, Assistant Director FSL, Aizawl was examined as PW-5 and in his examination-in-chief, he stated that on 07.10.2016, the Director of FSL received one exhibit from the SDPO, Aizawl South Sub-Division for biological examination and the same was endorsed to him for examination on the same day. 14. Sh. Lalchhanzova, Assistant Director FSL, Aizawl was examined as PW-5 and in his examination-in-chief, he stated that on 07.10.2016, the Director of FSL received one exhibit from the SDPO, Aizawl South Sub-Division for biological examination and the same was endorsed to him for examination on the same day. Thereafter, on 10.10.2016, he alongwith his Assistant conducted the biological examination of the exhibit and upon doing so, they came to the finding that there were traces of semen from the stains in the exhibit but the stains were insufficient for blood grouping. Further, blood was detected from the stains in the exhibit and the blood was found to be of human origin. 15. Pw-6 is Dr. Freddie Chhangte of Ngopa CHC. In his examination-in-chief, he deposed that on 04.10.2016 while he was on duty at Casualty in the Civil Hospital, Aizawl, the appellant was brought by one police personnel for medical examination, so as to see as to whether he was fit for being kept in custody for 24 hours. Accordingly, he conducted examination on the appellant and found him to be fit to be kept in custody. In his cross examination, he stated that he did not draw any blood samples from the appellant to ascertain as to whether he was suffering from any kind of disease. 16. Dr. Lalremruati Hmar, Consultant, Civil Hospital, Aizawl was examined as PW-7 and in her examination-in-chief, she deposed that on 05.10.2016 she was on duty in the Gynae Department and the prosecutrix said to be a rape victim was brought by one police personnel for medical examination. Accordingly, she conducted examination on the prosecutrix and recorded her findings. She exhibited her medical examination report as Exhibit P-6 and her signature as Exhibit P-6(a). In her cross examination, she stated that she did not find sperm of the accused nor injury in the vagina of the victim. 17. Smt. Lalhmachhuani Sailo was examined as PW-8 and in her examination-in-chief, she stated that she had conducted the investigation. That during the investigation, the prosecutrix as well as the appellant were medically examined and the appellant was arrested. His statement was recorded wherein he stated that he was released from jail on 03.10.2016 after being convicted on a theft case. Smt. Lalhmachhuani Sailo was examined as PW-8 and in her examination-in-chief, she stated that she had conducted the investigation. That during the investigation, the prosecutrix as well as the appellant were medically examined and the appellant was arrested. His statement was recorded wherein he stated that he was released from jail on 03.10.2016 after being convicted on a theft case. On the night of 04.10.2016, he drank liquor near the house of the prosecutrix and went inside the room and saw her sleeping on the bed and he simply left her. Her investigation revealed that the prosecutrix was frightened of the appellant as he had murdered one person in the past and for which, he was convicted in connection with Siaha P.S. Case No. 37/2011 dated 12.06.2011 under Section 302 IPC and exhibited the Judgment as Exhibit P-9. However, a perusal of Exhibit P-9 from the case record which is the Judgment dated 20.05.2013, it is seen that the appellant and the co-accused were acquitted from the charge under Sections 302/394/376(2)(g)/120/34 of IPC but were convicted under Section 404/354/201/34 IPC and by the Order of Sentence dated 17.06.2013, both the appellant and the co-accused were sentenced to undergo Rigorous Imprisonment for 2 years under Section 404 IPC with fine of Rs. 2,000/- and also to undergo Rigorous Imprisonment for 2 years under Section 354 with fine of Rs. 2,000/-. They were also sentenced to undergo Rigorous Imprisonment for 6 months under Section 201 IPC and to pay a fine of Rs. 2,000/-. All the sentences were with a default clause and were directed to run consecutively. 18. From the evidences adduced by the prosecution, it is seen that the version of PW-1 (prosecutrix) is clearly corroborated by the other witnesses, importantly, PW-3, PW-2, PW-4 and PW-8. The statements of the prosecutrix were duly recorded by the Judicial Magistrate 1st Class (PW-4) under Section 164 of the Cr.P.C. The same may be abstracted below for ready perusal:- wxyz "My maternal uncle''s son namely Lalchhanchhuaha has been living in our residence ever since he was a young child. He has also been jailed sometimes owing to his bad behavior. He was released from Central Jail on 03.10.2016 and he came to our house on the morning of 04.10.2016. He has also been jailed sometimes owing to his bad behavior. He was released from Central Jail on 03.10.2016 and he came to our house on the morning of 04.10.2016. On 04.10.2016 morning, I was in bed with our youngest daughter who is just 7 years old as my husband was on duty at Assembly House. I woke up as someone touched my thighs at around 2:00 a.m. I asked who the person was when he throttled my neck and said, "Are you going to shout? Is so, I will kill you." I did not have the guts to shout and he ordered me to take off my pant. He forcefully had sex with me in this manner. As he has been jailed before for murder, I did not have the guts to fight or resist his moves. zyxw wxyz He immediately left after having sexual intercourse with me in this manner and he returned at 7:00 a.m. I informed my aunt and her husband of this incident at around 6:00 a.m. zyxw wxyz After discussing the matter with my other relatives, we decided to lodge an FIR on the night of 04.10.2016." zyxw 19. The Judicial Magistrate 1st Class, who recorded the statements of the prosecutrix under Section 164 was examined as PW-4, wherein he reiterated the fact of the statements of the prosecutrix being duly recorded as per procedure. On being cross examined, his deposition in his examination-in-chief was neither falsified nor demolished. 20. Although the appellant in his examination under Section 313 of the Cr.P.C. stated that he did not commit rape upon the prosecutrix but had consensual sex, this explanation is however not supported by any evidence and there is also not even a slight indication or suggestion in the cross-examination of the prosecution witnesses during the trial. As duly noted by the Trial Court, there also appears to be no enmity between the appellant and the prosecutrix so as to implicate the appellant of having committed rape upon the prosecutrix. It may also be seen that if it was indeed consensual sex, there was no reason for the appellant to have approached the prosecutrix in the early morning of 04.10.2016 at around 2:00 AM, when the husband of the prosecutrix was away for night duty in the State Assembly. It may also be seen that if it was indeed consensual sex, there was no reason for the appellant to have approached the prosecutrix in the early morning of 04.10.2016 at around 2:00 AM, when the husband of the prosecutrix was away for night duty in the State Assembly. Besides this, there was no reason for the prosecutrix to reveal and accuse the appellant of having committed rape upon her since no one was aware about the said incident till it was revealed by the prosecutrix herself. The immediate past criminal record of the appellant also explains the apprehension and fear felt by the prosecutrix of being put to death, since the appellant threatened her by saying that he had a knife nearby. That apart, the appellant strangulated the prosecutrix while threatening her that he would kill her if she shouted. 21. Although it may not be of much consequence but as pointed out by the learned Additional Public Prosecutor, the appellant himself has not denied having committed the offence upon the prosecutrix. His appeal basically is for reduction of the sentence on health grounds. 22. The materials on record also reveals that the appellant is suffering from HIV as well as Hepatitis C and this fact even appears to be known to the prosecutrix herself. The appellant therefore by committing rape upon the prosecutrix has put her under serious health risk. This itself would invite additional criminal liability upon the appellant. However, as charge was not framed in this regard and the trial likewise did not proceed on this issue, we would not like to open a new chapter on this issue at this stage. 23. With regard to the sustainability of the conviction and sentence of the appellant on the basis of the testimony of the prosecutrix, the Apex Court in Narender Kumar (Supra) has held that once the statement of the prosecutrix inspires confidence and is accepted by the Court, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitates the court for corroboration of her statement. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice of the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice of the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness. Similar was the finding of the Apex Court in the case of Aman Kumar & Anr. Vs. State of Haryana, (2004) 4 SCC 379 and also State of H.P. Vs. Shree Kant Shekari, (2004) 8 SCC 153 , where it was held that assurance, short of corroboration, is found to be sufficient for convicting an accused on the sole testimony of the prosecutrix. 24. The Apex Court in the case of State of Punjab Vs. Ramdev Singh, (2004) 1 SCC 421 has held that sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, owner, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim''s most cherished of fundamental rights, namely, the right to life contained in Article 21. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos. 25. Thus, upon giving our anxious consideration on the facts and circumstances of the case and the materials on record in its entirety, we do not find any infirmity in the order of conviction and sentence passed by the Trial Court. Having opined as such, the appeal is found to be devoid of any merit and the same is dismissed. Send back the LCR immediately. 26. Having opined as such, the appeal is found to be devoid of any merit and the same is dismissed. Send back the LCR immediately. 26. Before parting with the record, we find it apt to observe herein that the appellant appears to be having health issues and therefore, the Special Superintendent, Central Jail, Aizawl in consultation and permission of the appropriate authorities of the State should make necessary arrangement so that the appellant gets proper medical treatment. A copy of this order be sent to the Special Superintendent, Central Jail, Aizawl for information to the appellant and for necessary action. 27. For the valuable assistance rendered by Mr. K. Lalchhanliana, the learned Amicus Curiae, he shall be paid a remuneration of Rs. 9,000/- by the Mizoram State Legal Services Authority, on production of a copy of this order.